Michael P. Maslanka

Michael P. Maslanka is managing partner of the Dallas office of Constangy, Brooks & Smith. His e-mail address is mmaslanka@constangy.com. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the “Work Matters” column for Texas Lawyer’s In-House Texas publication and records labor and employment podcasts that can be found at www.texaslawyer.com.

January 23, 2013

But-for and mixed-motive causation squaring off in U.S. Supreme Court case, Nassar v. UT Southwestern Medical Center, that was tried in Dallas

On Jan. 18, the U.S. Supreme Court granted cert in a blockbuster employment case. The issue is whether Title VII's retaliation provision and similar worded statutes “require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).”

Why is this case a big deal? The but-for instruction is pro-employer: The judge tells the jury that a retaliatory motive must be the reason for the adverse employment action. By contrast, the mixed-motive instruction is pro-employee: The judge instructs the jury that an improper motive need be only one of multiple reasons for the adverse employment action.

I am convinced that I won a jury trial a few years ago because the judge gave a but-for instruction. Also, summary judgment or a judgment as a matter of law is much more likely if a court applies the but-for standard.

I will be blogging more on this. My prediction? I want to read the merits briefs, but I think 5-4 for mixed-motive.SCOTUS, over the last several years, has been big on protecting employees’ rights to be free of retaliation when they complain.

And, let’s face it: Most people, including judges, are wired to believe that employers smack down employees who speak up. We will see. I love this stuff.